Thoughts on Life, Love, Politics, Hypocrisy and Coming Out in Mid-Life

Friday, May 04, 2018

The Supreme Court Will Make Trump Talk

Throughout his real estate career - and seemingly his entire life - Donald Trump has always demonstrated two traits: he lies incessantly and he views himself as above the law, the latter being evidenced by his questionable mob ties and cosiness with Russian mobsters, not to mention his repeated disdain for municipal and federal laws that get in his way. Now, with the Mueller investigation apparently headed towards a showdown, Mueller's trump card - no pun intended - is to secure a federal grand jury subpoena for Trump to testify. Given Trump's endless lying, nothing poses a bigger danger than Trump before a grand jury with no legal counsel at his side. The likelihood of perjury occurring is, in my view, almost guaranteed and would open yet another phase for prosecution of Trump. Thus, the question becomes whether or not Trump can be forced to testify. A piece in New York Magazine suggests that, if given the opportunity, the U.S. Supreme Court would rule that Trump must testify (and likely cause his own undoing in the process). Here are article highlights:

Rudy Giuliani may have just made
the case for why Robert Mueller, the special counsel getting to the bottom
of Russia’s role in the last presidential election, has a real need to speak
with Donald Trump. And it has everything to do with the president’s state of
mind during a key moment under the microscope: the firing of James Comey, the
former FBI director.

“He fired Comey because he would not, among other things,
say that he was not a target of the investigation,” Giuliani told Fox News’
Sean Hannity late on Wednesday. . . . . So he fired him, and he said ‘I’m free
of this guy.’”

United States v. Nixon, the landmark Supreme Court
case that
forced President Richard Nixon to comply with a prosecutorial subpoena to turn
over the Watergate tapes, is still good law. And of all the important
principles the decision stands for — beyond precipitating the fall of a sitting
president — one that rises to the top is the American public’s interest in the
fair and impartial administration of justice. The court system must be able to
get a full picture of the facts of a criminal investigation. “To ensure that
justice is done,” Chief Justice Warren Burger wrote for an 8-to-0 court, “it is
imperative to the function of courts that compulsory process be available for
the production of evidence needed either by the prosecution or by the defense.”

Nixon is controlling law for the Mueller investigation. And
in light of reporting this week that the special counsel still has a keen
interest in interviewing Trump — and an apparent willingness to rely on compulsory
process — there is a distinct possibility that Mueller may go to court and
invoke Nixon if [Trump] the president doesn’t cooperate, either voluntarily or
in the face of a valid subpoena. That’s the kind of momentous confrontation
that no doubt would quickly make its way to the Supreme Court, which so far has
seemed willing to treat Trump just like any
other president, rather than carve out Trumpian exceptions to presidential
powers that may bind later chief executives.

Even if he’s not a target, courts may still determine that Trump is
required to give the evidence that’s asked of him — especially in a probe where
he may hold the key to many of its mysteries. “The need to develop all relevant
facts in the adversary system is both fundamental and comprehensive,” the
Supreme Court said in Nixon. “The ends of criminal justice would be
defeated if judgments were to be founded on a partial or speculative
presentation of the facts.”

That’s precisely the state of affairs with a number of unresolved
strands of the Russia investigation. We don’t know Trump’s frame of mind or
what he knew when he fired Mike Flynn. We don’t know if he ever learned during
the campaign that two of his family members and his campaign chairman wanted to
obtain “dirt” on his rival from Russians during a meeting in Trump Tower. Or
the reason he dictated the White House response to news reports revealing that
the meeting took place. Or what he meant when he told NBC News’s Lester Holt
that he dismissed Comey on account of “this Russia thing.” And what about his
reported comments to Russian officials in the Oval Office, one day after
Comey’s firing, that getting rid of the FBI director relieved “great
pressure” from his presidency?

These are all open questions that are critical to Mueller
and that only Trump can answer. And notice how all of these queries are far
more focused than the broad, open-ended questions that Trump’s legal team leaked
to the New York Times this week — not even Fox News’ Howard Kurtz buys
the spin that these disclosures came from Mueller’s side. . . . .[the] suggestion — that he [Mueller] remains
on a never-ending fishing expedition — is just red meat for Trump’s base and a
tactic to discredit Mueller’s work. Getting Trump’s direct testimony for a
narrower set of interrogatories is Mueller’s way of tying up loose ends.

If Mueller can show that he has, as Nixon observed, a
“demonstrated, specific need for evidence,” he’ll get it. The republic, the
separation of powers, and the office of the presidency won’t crumble. The
opposite may be true if the courts and the office of the special counsel are
stonewalled by Trump and aren’t allowed to do their job.

Personally, I hope Mueller seeks a subpoena and soon. It is far past time to put Trump in a box where he must testify and where, if he lies - a near certainty in my view - he will make matters far worse for himself. I suspect Mueller already has information and evidence that he can use to catch Trump in his near certain lies. Get out the popcorn.

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Out gay attorney in a committed relationship; formerly married and father of three wonderful children; sometime activist and political/news junkie; survived coming out in mid-life and hope to share my experiences and reflections with others.
In the career/professional realm, I am affiliated with Caplan & Associates PC where I practice in the areas of real estate, estate planning (Wills, Trusts, Advanced Medical Directives, Financial Powers of Attorney, Durable Medical Powers of Attorney); business law and commercial transactions; formation of corporations and limited liability companies and legal services to the gay, lesbian and transgender community, including birth certificate amendment.

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